[60] Momcilovic was decided on grounds not relevant here but the Court considered a number of issues relating to the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). The Charter contains provisions equating to ss 5 and 6 of the New Zealand Bill of Rights.81 Section 36 of the Charter empowered the Supreme Court to make declarations of inconsistent interpretation. Section 36(5) makes it clear that a declaration does not affect “the validity, operation or enforcement” of the provision to which the declaration relates or create “any legal right or give rise to any civil cause of action”. [61] The Attorney-General points to the findings in Momcilovic that making a declaration of inconsistency under s 36 was not within the judicial function conferred by Ch III of the Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution).82 [62] We consider the approach to this aspect in Momcilovic has to be assessed against the particular Australian constitutional law setting. Only “a court referred to in s 71” of the Constitution can exercise Commonwealth judicial power and such a court “cannot exercise non-judicial power, or a power that is not incidental to a judicial power”.83 Importantly for present purposes the Constitution is, as Professor Michael Taggart said, generally treated “as establishing a firm separation of powers between the three branches of government, much stricter than in the [United States of America] or Canada”.84 It is construed as “especially rigid in separating and protecting judicial power”.85 It is in the context of, essentially, ensuring the maintenance of the separation 81 82 83 84 85 Section 7 of the Charter is the equivalent to s 5 of the Bill of Rights and s 32 is the equivalent of s 6. See at [80] and [89] per French CJ. Bell J agreed with French CJ’s reasons for the conclusion there was no exercise of a judicial function: at [661]. See also Gummow J at [178] and [184]. Hayne J agreed with Gummow J on this point: at [280]. Similarly, Heydon J said the power was not judicial but “merely advisory”: at [457]. Crennan and Kiefel JJ said the making of a declaration was not an exercise of a judicial power but found it was incidental to judicial power: at [584] and [600]. Will Bateman and James Stellios “Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights” (2012) 36 MULR 1 at 7, discussing R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. Michael Taggart “‘Australian Exceptionalism’ in Judicial Review” (2008) 36 FL Rev 1 at 4. See also Scott Stephenson “Rights Protection in Australia” in Cheryl Saunders and Adrienne Stone (eds) The Oxford Handbook of the Australian Constitution (OUP, Oxford, 2018) 905 at 922. At 5.